May 2009

In
The Elusive Quest for Global Governance Standards, Professors Lucian
Bebchuk and Assaf Hamdani argue that the currently available metrics
for assessing the governance of public companies around the world suffer
from a basic shortcoming. The impact of many key governance arrangements,
they argue, depends considerably on companies' ownership structure:
measures that protect outside investors in a company without a controlling
shareholder are often irrelevant or even harmful when it comes to investor
protection in companies with a controlling shareholder, and vice versa.
Consequently, governance metrics that purport to apply to companies
regardless of ownership structure are bound to miss the mark with respect
to one or both types of firms. In particular, Bebchuk and Hamdani attempt
to show that the influential metrics used extensively by scholars and
shareholder advisers to assess governance arrangements around the world—the
Corporate Governance Quotient (CGQ), the Anti-Director Rights Index,
and the Anti-Self-Dealing Index—are inadequate for this purpose.
They suggest that going forward, the quest for global governance standards
should be replaced by an effort to develop and implement separate methodologies
for assessing governance in companies with and without a controlling
shareholder. The professors identify the key features that these separate
methodologies should include and discuss how to apply such methodologies
in either country-level or firm-level comparisons.

Recent
studies have established that the decisions of a federal court of appeals
judge are influenced not only by the preferences of the judge, but also
by the preferences of her panel colleagues. Although the existence
of these “panel effects” is well documented, the reasons that they
occur are less well understood. Scholars have proposed a number
of competing theories to explain panel effects, but none has been established
empirically. In Deliberation and Strategy on the United States
Courts of Appeals: An Empirical Exploration of Panel Effects, Professor
Pauline Kim reports an empirical test of two competing explanations
of panel effects—one emphasizing deliberation internal to a circuit
panel, the other hypothesizing strategic behavior on the part of circuit
judges. The latter explanation posits that court of appeals judges
act strategically in light of the expected actions of others and that,
therefore, panel effects should depend upon how the preferences of the
Supreme Court or the circuit en banc are aligned relative to those of
the panel members. Analyzing votes in Title VII sex discrimination
cases, she finds no support for the theory that panel effects are caused
by strategic behavior aimed at inducing or avoiding Supreme Court review. On the other hand, the findings strongly suggest that panel effects
are influenced by circuit preferences. Both minority and majority
judges on ideologically mixed panels differ in their voting behavior
depending upon how the preferences of the circuit as a whole are aligned
relative to the panel members. This study provides evidence that
panel effects do not result from a dynamic wholly internal to the three
judges hearing a case, but are influenced by the environment in the
circuit as a whole as well.

In
Retributive Damages: A Theory of Punitive Damages as Intermediate
Sanction, Professor Dan Markel argued that the purpose of punitive
damages should be to advance—in part—the public’s interest in
retributive justice. These “retributive damages” should be
an expressly intermediate sanction, independent of other remedial or
penal options. Markel provided the basic structure of these retributive
damages; however, the theoretical nature of the proposal did no more
than touch on how they would operate in practice.

In
How Should Punitive Damages Work?, Markel addresses the next question:
how should punitive damages, including retributive damages, work?
This question is especially timely in light of the Supreme Court’s
recent decision in Philip Morris USA v. Williams, which held
that juries may not consider the harms to nonparties in determining
punitive damages awards.

To
make punitive damages work, Markel argues that we must first separate
retributive damages from other extracompensatory damages meant to achieve
cost internalization or to vindicate the victim’s dignity interests.
Because these three purposes are distinct, conflating them carries the
danger of both under- and overprotection of various defendants. Once
we understand these purposes and the distinctions between them, we should
be able to map them on to our existing institutional design for civil
damages. Markel begins, first, by explaining why and how defendants
should enjoy certain procedural protections depending on which purpose
the damages serve, and second, by addressing two critical implementation
issues associated with this pluralistic scheme of extracompensatory
damages: insurance and settlement.

Opponents
of affirmative action are waging a national battle over race-conscious
admissions through state ballot initiatives like California’s Proposition
209, Washington’s Initiative 200, Michigan’s Proposal 2, and Nebraska’s
Initiative 424. With seemingly little regard for Title VI federal civil rights law,
public universities have been prone to assume that “affirmative action–less”
admissions policies and plunging minority admissions are the inevitable
outcome of compliance with state anti–affirmative action laws. In The River Runs Dry, Professor Kimberly West-Faulcon challenges
this framing. She argues that the prominent role of the SAT in selective
college admissions, dictated in large measure by its importance in college-ranking
and financial bond-rating systems, creates an incentive for universities
to adopt “minority-deficiency” over “test-deficiency” explanations
for racial differences in SAT scores. She considers whether universities
that completely abolish affirmative action to comply with state anti–affirmative
action initiatives may actually be breaking the law with respect to
Title VI. Using statistical tests for identifying Title VI disparate
impact, she analyzes selective California and Washington public university
admissions cycles after the enactment of anti–affirmative action laws
and finds racial disparities in admissions to affirmative action–less
universities of sufficient magnitude that, if unjustified, could establish
that an institution has a compelling interest in considering race to
comply with federal antidiscrimination law. Based on this analysis,
she concludes that state anti–affirmative action laws may permit the
consideration of race if undertaken to remedy federal “racial effect
discrimination.”

December 2008

In his Article, Professor Cox questions the central principle of immigration law that rules for selecting immigrants are fundamentally different from rules that regulate the lives of immigrants outside the selection process. Cox argues that the distinction is false because every rule of immigration necessarily effects both selection and regulation. Furthermore, even if rules could effectively be categorized, there is no moral or constitutional significance to the distinction. Rather, they are simply two alternative mechanisms that a state may use to achieve a particular end. Under this new understanding, Cox explores the implications to immigration law and institutional design.

In this Article, Dean Graham examines the recent history of federal lifesaving regulation and argues that, considering both philosophical and practical perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages relative to regulation informed by the main alternatives to BCA. Using his first-hand experience as the Administrator of the Office of Information and Regulatory Affairs (OIRA), Graham suggests that, despite its reputation for antiregulatory bias, BCA is actually an influential tool for protecting or advancing valuable lifesaving regulations. But the Article also pinpoints problems in the “benefit-cost” state, and identifies opportunities for improvement in the process of lifesaving regulation. Graham concludes by suggesting that innovations in analytic practice that would strengthen the efficiency and fairness of federal lifesaving regulation.

Democratic experimentalism, the procedural component of the “new governance” movement, has won widespread acceptance in calling for decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic solutions to social problems.

Although the democratic experimentalist movement formally began only a decade ago, antipoverty law has reflected its major principles since the 1960s. This experiment has gone badly, weakening antipoverty programs. Key elements of this participatory approach to antipoverty law—decentralization, privatization, and the substitution of ad hoc problemsolving for individual rights—all contributed to the calamity that low-income people suffered during and after Hurricane Katrina. Those same features prevented the country from acting on the widely shared concern about poverty in Katrina’s wake. Indeed, almost all progress in antipoverty law has come from centralized, nonparticipatory, and non-experimentalist policy-making.

Democratic experimentalism assumes consensus on the nature of problems and the propriety of government action, reliable metrics for measuring success, the luxury of time, the lack of situations requiring centralized policymaking, and deliberation that is costless in most respects. It also requires that one side risk political capital to establish an experimentalist system. These assumptions have not been fulfilled in antipoverty law. Little suggests that they will be met in other fields either.

Further progress in antipoverty law must come from centralized policymaking based on substantive consensus among many, though not all, liberals and conservatives. This consensus will follow many substantive components of the new governance, including reliance on market incentives. Democratic experimentalism should learn from debates about deliberative democratic theory that have wrestled with its key weaknesses

Rather than overrule the previous sixty years of Commerce Clause cases, Lopez reinterpreted many of the earlier cases to make them fit within its new framework. While Lopez was a surprising shift in Commerce Clause doctrine at the time of the Court’s decision, two major subsequent cases, United States v. Morrison and Gonzales v. Raich, have reinforced the Lopez framework and continued the effort to pull back on what the Court has seen as the increasing federalization of control over traditionally local activities. Since 1995, federal courts have been more willing to strike down federal laws as exceeding Congress’s power under the Commerce Clause, particularly those laws that have dealt with non-economic criminal activities.

This Comment explores the current legal paradox that allows for the repatriation of art taken during World War II while maintaining stolen Flemish art in the Louvre for eternity. Part I discusses the Napoleonic revolution and the creation of French museums relying on stolen European masterpieces for their collections. Even though the Second Treaty of Paris required some restitution of Italian and Austrian art, Flemish art taken by French troops remained in France even after peace was declared. Part II analyzes the development of the law of restitution from Roman prize law through World War II and presents examples of how nations today attempt formal and informal repatriation claims. Part III presents an argument for why France should return Flemish art to Belgium and describes what legal routes Belgium might take to retrieve its works of art.

Volume 157, Issue 1

November 2008

Oren Bar-Gill and Elizabeth Warren’s Making Credit Safer begins by noting that, while physical products, from toasters to toys, are routinely inspected and regulated for safety, credit products, like mortgage loans and credit cards, are left largely unregulated, even though they can also be unsafe. Because financial products are analyzed through a contract paradigm rather than a products paradigm, consumers have been left with unsafe credit products. Bar-Gill and Warren use the physical products analogy to build a case, supported by both theory and data, for comprehensive safety regulation of consumer credit and propose a fundamental restructuring of this current regulatory regime, urging the creation of a new federal regulator that will have both the authority and the incentives to police the safety of consumer credit products.

Lawmaking bodies in one polity sometimes incorporate the law of another polity “dynamically,” so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. Dynamic incorporation does, however, delegate lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such cessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation states agree to delegate law-making power to a supranational entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation states within the decision-making structures of the supranational entity can ameliorate, but cannot fully compensate for, the resulting democratic losses suffered by those nation states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to self-governance.

In well-functioning domestic legal systems, courts provide a mechanism through which commitments and obligations are enforced. A party that fails to honor its obligations can be brought before a court and sanctioned through seizure of person or property. The international arena also has courts or, to expand the category somewhat, tribunals. These institutions, however, lack the enforcement powers of domestic courts. How, then, do they work, and how might they work better or worse? The first objective of this Article is to establish that the role of the tribunal is to promote compliance with some underlying substantive legal rule. This simple yet often-overlooked point provides a metric by which to measure the effectiveness of tribunals. But a tribunal does not operate in isolation. The use of a tribunal is one way to resolve a dispute, but reliance on diplomacy and other traditional tools of international relations is another. Furthermore, even if a case is filed with a tribunal, there may be settlement prior to a ruling and, even if there is a ruling, the losing party may refuse to comply. Understanding international tribunals, therefore, requires consideration of the entire range of possible outcomes to a dispute, including those that do not involve formal litigation. The second goal of this Article is to develop a rational-choice model of dispute resolution and tribunals that takes this reality into account. The third goal is to explore, based on the above model, various features of international tribunals and identify those that increase effectiveness and those that reduce it. Finally, the Article applies the analysis to help us understand two prominent tribunals: the World Trade Organization’s Appellate Body and the United Nations Human Rights Committee.

Over seventy years ago, the creation of the Federal Rules of Civil Procedure represented the triumph of equity over the often-arbitrary distinctions created by the common law pleading and code pleading systems that predated them. Despite equity’s expansion beyond pleading and into most areas of litigation, there still remains an area where the rules of procedure are inflexible and complex: the current system of post-trial motions and notices of appeal often creates “trap[s] for an unsuspecting litigant” during the transfer of a case to the court of appeals from the district court. Limitations on the power of the district court to hear motions after the judgment have long been viewed as having “jurisdictional significance,” and courts view the deadlines as “mandatory and jurisdictional.” This use of the term “jurisdictional” prevents resort to equitable principles that could excuse noncompliance in certain cases where strict litigation deadlines create harsh results.

Popular discussion of the standing doctrine has reached a fever pitch. A search for “standing to sue” in the New York Times archives for the last two years connects this phrase to a smorgasbord of hot political issues: global warming, warrantless wiretapping, torture, and the separation of church and state. For a relatively young doctrine, standing is incredibly pervasive in popular as well as judicial discourse.

This Comment explores the implications of the standing analysis for a particular group of plaintiffs: Protection and Advocacy Organizations (P&As)—a group of federally funded nonprofit corporations or state entities statutorily charged with protecting and advocating on behalf of individuals with disabilities.

We are sorry to note that William S. Stevens, member of the University of Pennsylvania Law School Class of 1975 and a former editor of the Law Review, passed away last week at the age of sixty. While a member of the Law Review, Stevens wrote a humorous anonymous “Aside” on the relationship between baseball’s infield fly rule and the common law that the New York Times hails as “one of the most celebrated and imitated analyses in American legal history.” In memory of Mr. Stevens, we post his famed note, The Common Law Origins of the Infield Fly Rule, 123 U. PA. L. REV. 1474 (1975), here. Our thoughts, prayers, and condolences are with his family.